McCutcheon Breeds Cynicism

When it comes to campaign finance, the public’s perception of corruption matters. But what if the public doesn’t care?

Scott Dorn andJoan Stallard discuss campaign finance in front of the Supreme Court on April 2, 2014. It's not just those two who care about this stuff, is it?

Photo by Rod Lamkey/Getty Images

With the impending demise of TheColbert Report, we’re not just losing “Stephen Colbert” the character, but also, very likely, Stephen Colbert the political agitator and one of the heroes in the public discourse around campaign finance laws. His sustained, crazy, years-long assault on the Citizens United decision had no parallel in the national conversation with the court. Whether it made a difference or not is difficult to tell. But Colbert became Exhibit A in the public effort to persuade the court that Justice Anthony Kennedy was wrong in 2010 when he wrote, “The appearance of influence or access … will not cause the electorate to lose faith in our democracy.” He was also Exhibit A in the effort to show that what the public thinks about all this should still matter.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Colbert’s move to what I can only assume will be a less political platform on CBS is particularly a loss now, given that last week the Supreme Court struck down the aggregate contribution limits in McCutcheon v. FEC, causing supporters of campaign finance reform tremendous dismay. Whatever remains of McCain-Feingold is clearly not long for this world. It is hardly a surprise, then, that in the aftermath of McCutcheon I have heard a lot of people asking what they can possibly do to counter what they expect will be a tsunami of big money, to be dumped into the coffers of the federal candidates, parties, and committees in the coming months.

It’s clear that some Americans are mad enough to want to gear up and fight. The Nation reports:

In the days after McCutcheon, a coalition led by Public Citizen mobilized thousands—150 demonstrations in forty-one states—to protest the ruling. Move to Amend, which is calling for a constitutional amendment to reverse Citizens United and McCutcheon, has over 300,000 members; some 500 municipalities and sixteen states support an amendment. Senator Bernie Sanders and Representative Ted Deutch are sponsoring parallel resolutions that would reverse all three bad Supreme Court rulings. New Yorkers are renewing the drive to hold Governor Andrew Cuomo accountable for breaking his promise to support public financing of state elections. And activists are calling for increased disclosure as well as public financing of elections at the state and federal levels.

It’s clear that at least some proportion of Americans are even more likely than they were before to give up the fight; to become further disaffected and disenfranchised in the wake of a decision by the court to privilege the free-speech rights of a fistful of millionaires over their own. And it’s important to recognize that as the public gives up, the things that once appeared corrupt will soon seem like just another day on Capitol Hill.

One of the central paradoxes of the whole “appearance of corruption” standard that the court papered over in McCutcheon last week is that the perception of the public actually matters, or at least it should, when the court is attempting to assess the need for campaign finance regulation. But in an important piece this week, Hasen notes that what the court did in McCutcheon, almost imperceptibly, in addition to narrowing the definition of “corruption” to the point where it’s basically akin to only plain bribery, was to define the “appearance of corruption” almost out of existence.

By viewing what might have seemed dirty a decade ago as just “politics” today, the public fades out of the court’s calculus.

As Hasen reminds us, when campaign finance reform was first passed, the public perception of government corruption mattered a great deal, and even when the court began to erode those regulations in 1976’s Buckley v. Valeo ruling, it noted that “[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.” The court has oscillated back and forth in the intervening years about how much public confidence in the integrity of the voting system matters in these cases. But it’s clear that it was an important value at least as recently as 2000, when Justice David Souter wrote: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”

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Hasen’s argument is that as the definition of actual corruption narrowed at the court, the “appearance of corruption” standard acted as a check: “More recently,” he writes, “as the court has narrowed the meaning of ‘corruption,’ the appearance of corruption interest became even more critical. With the term ‘corruption’ limited to something like actual bribery, ‘appearance’ acted as a stand-in for a broader concern about undue influence and fairness in a system of pay-to-play politics.” But as we define the appearance of corruption out of existence by viewing what might have seemed dirty a decade ago as just “politics” today, the public fades out of the court’s calculus.

Our national conversation over privacy might be a useful analogy here. It is often said that as the American public’s expectation of privacy diminishes, the actual constitutional zone of privacy around them diminishes as well. If we come to believe that GPS tracking and cellphone searches are just a part of life, they become constitutionally permissible as a matter of law. We are both the measuring stick and the ratchet. In a sense the McCutcheon majority is saying that as the public expectation of integrity diminishes, the actual integrity might diminish as well. In dropping out and giving up, we aren’t merely responding to the court’s “appearance of corruption” standard. We’re helping construct it.

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Now just as quid pro quo corruption in elections is almost impossible to prove empirically, so is voter disaffection. The Brennan Center did a poll in 2012 in which, among other things, one in four Americans surveyed said that they were less likely to vote in light of the increased spending in elections. That’s not a scientific measure, but it suggests what many of us, including Breyer, fear: that voters respond to these election finance cases by dropping out. An even more sobering possibility emerges today with a new Pew poll showing that the American public just doesn’t care about campaign finance issues. The post-Citizens United outrage is gone. Whether that’s a function of dropping out or moving on almost doesn’t matter. There can be no “appearance of corruption” if the public isn’t worrying about it.

Those who disliked what Colbert did each night on The Colbert Report were wont to accuse him of blurring the line between politics and entertainment, and in so doing, ratcheting up the general public cynicism about the political process. Some of that criticism was legitimate. But what Colbert did to bring public attention to the supremely broken system of campaign financing was neither cynical nor trivial, even when it was entertaining. Whether, without his cynical, disaffected eye, we can be saved from our cynical disaffection is still an open question.